Month: August 2019 (Page 1 of 2)

How often should legal documents be reviewed?

August 30, 2019 / drussellcfp

Once a legal document is completed and signed, it is often carefully laid to rest in a safe deposit box or file drawer and comes out again only when a party dies or a conflict arises.

Prudent persons periodically review and update their legal documents. Just how often depends, of course, on the document and which circumstances have changed. The following list sets forth some events that may require the updating of a legal document.

Life Events

● Marriage.
● Dissolution of a marriage (divorce).
● Death of a spouse.
● Disability of a spouse or child.
● A substantial change in estate size.
● A move to another state.
● Death of executor, trustee or guardian.
● Birth or adoption.
● Serious illness of family member.
● Change in business interest.
● Retirement.
● Change in health.
● Change in insurability for life insurance.
● Acquisition of property in another state.
● Changes in tax, property or probate and trust law.
● A change in beneficiary attitudes.
● Financial responsibility of a child.

If there is any question as to the effect of a change in circumstances on your will, trust, buy-sell agreement, asset titles and beneficiary designations, etc., contact the appropriate member of your team and have it reviewed before a crisis arises.

Nursing Home Staffing Reports for all 50 States

August 29, 2019 / drussellcfp

The Long Term Care Community Coalition (LTCCC) is a nonprofit organization dedicated to improving quality of care, quality of life and dignity for elderly and disabled people in nursing homes, assisted living and other residential settings.

LTCCC focuses on systemic advocacy, researching national and state policies, laws and regulations in order to identify relevant issues and develop meaningful recommendations to improve quality, efficiency and accountability. In addition to providing a foundation for advocacy, LTCCC uses this research and the resulting recommendations to educate policymakers, consumers and the general public. Consumer, family and LTC Ombudsman empowerment are fundamental to our mission.

LTCCC’s work is grounded in its organization as a New York State based coalition of consumer, community, civic and professional organizations, bringing together these different stakeholders to identify & address the systemic issues that affect quality of care and dignity in long-term care.

Click on the links below to download easy-to-use files for each state. Each file includes information on: Each facility’s direct care RN, LPN, and CNA staffing levels; Staffing levels for important non-nursing staff, including administrators and activities staff; and The extent to which the facility relies on contract workers to provide resident care.To facilitate

Source: Nursing Home Staffing 2019 Q1 – Nursing Home 411

Caregiver Burnout

August 28, 2019 / drussellcfp

What is caregiver burnout?

Caregiver burnout is a state of physical, emotional and mental exhaustion. It may be accompanied by a change in attitude, from positive and caring to negative and unconcerned. Burnout can occur when caregivers don’t get the help they need, or if they try to do more than they are able, physically or financially. Many caregivers also feel guilty if they spend time on themselves rather than on their ill or elderly loved ones. Caregivers who are “burned out” may experience fatigue, stress, anxiety and depression.

What causes caregiver burnout?

Caregivers often are so busy caring for others that they tend to neglect their own emotional, physical and spiritual health. The demands on a caregiver’s body, mind and emotions can easily seem overwhelming, leading to fatigue, hopelessness and ultimately burnout. Other factors that can lead to caregiver burnout include:

Role confusion: Many people are confused when thrust into the role of caregiver. It can be difficult for a person to separate her role as caregiver from her role as spouse, lover, child, friend or another close relationship.
Unrealistic expectations: Many caregivers expect their involvement to have a positive effect on the health and happiness of the patient. This may be unrealistic for patients suffering from a progressive disease, such as Parkinson’s or Alzheimer’s.
Lack of control: Many caregivers become frustrated by a lack of money, resources and skills to effectively plan, manage and organize their loved one’s care.
Unreasonable demands: Some caregivers place unreasonable burdens upon themselves, in part because they see providing care as their exclusive responsibility. Some family members such as siblings, adult children or the patient himself/herself may place unreasonable demands on the caregiver. They also may disregard their own responsibilities and place burdens on the person identified as primary caregiver.
Other factors: Many caregivers cannot recognize when they are suffering burnout and eventually get to the point where they cannot function effectively. They may even become sick themselves.

What are the symptoms of caregiver burnout?

The symptoms of caregiver burnout are similar to the symptoms of stress and depression. They include:

Withdrawal from friends, family and other loved ones
Loss of interest in activities previously enjoyed
Feeling blue, irritable, hopeless and helpless
Changes in appetite, weight or both
Changes in sleep patterns
Getting sick more often
Feelings of wanting to hurt yourself or the person for whom you are caring
Emotional and physical exhaustion
Irritability

Source: Caregiver Burnout | Cleveland Clinic

Healthcare Surrogates can’t agree to Arbitration

August 27, 2019 / drussellcfp

Standing as a health surrogate doesn’t allow appointees to enter into nursing home arbitration agreements or other business agreements with providers, a Florida appeals court has ruled.

At issue was a nursing home attempting to force claims by a deceased resident’s estate into arbitration since one of the healthcare surrogates had signed an arbitration agreement during admission of the resident.

In making it’s ruling, the court stated:

“The heart of this case is whether a document that designates a healthcare surrogate is broad enough to allow that surrogate to consent to an arbitration provision in a nursing home admission form,” wrote Judge Robert Gross. “We hold that the narrow focus of the document is on the surrogates’ power to make healthcare decisions, not business choices concerning dispute resolution.”

Source: Healthcare surrogates can’t agree to arbitration on behalf of their charges, court rules – News – McKnight’s Long Term Care News

Undocumented Caregiving results in Medicaid Penalty Period

August 26, 2019 / drussellcfp

In a case that stresses the importance of keeping accurate records, especially for paid family caregivers, a New Jersey appeals court upheld a penalty period imposed by Medicaid against a Medicaid applicant for payments the applicant’s daughter received for providing caregiving service. E.B. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-3087-15T4, July 13, 2018).

The daughter [J.W.] testified that, in 2003, her then eighty-year old mother moved into her home. There was an area of J.W.’s home which, although physically attached to the house, was a separate unit where her mother lived. Her mother moved into the apartment because she was afraid of living by herself and was unable to shop or cook for herself.

In 2009, J.W. resigned from her job in order to care for her mother full time. In addition to providing supervision, J.W. assisted her mother with the activities of daily living. In 2011, J.W. was finding it too difficult to make ends meet because she was not earning income. She determined she either had to return to work and let a third party care for her mother during the day, or pay herself from her mother’s savings to compensate her for providing companion services. She chose the latter solution.

After some adjustments, Medicaid determined that $69,211.90 paid from the mother’s funds in order to pay for companion services was not for fair value, and imposed a penalty period. [Normally, the length of the penalty period is determined by the disallowed transfer – $69,211.90 – divided by the average monthly cost of nursing case in the area in which the applicant lives. For example, if the average cost of care in her area was $6,000 per month, then the penalty period would last for roughly one year.]

In making its determination, Medicaid found that the “proof of services rendered on a daily basis to the petitioner deficient”. There were no log sheets or like records tracking the hours she worked and the duties she performed. Second, it found the hourly rate paid to J.W. was not substantiated as appropriate for companion services. Third, J.W. began receiving wages when it was “foreseeable that advanced age and deteriorating condition would require intensive care and the possibility of entering a nursing care facility.” Finally, he observed there was no pre-existing written agreement between the mother and J.W. to pay for the subject services.

In denying her appeal, the Superior Court of Appeals in New Jersey stated:

We understand J.W.’s reasoning, specifically, that if she had to return to work, petitioner may as well pay her rather than a third party to provide companion services, especially because J.W. is a family member and would have her best interests in mind. Nevertheless, “a transfer of assets to a friend or relative for the alleged purpose of compensating for care or services provided free in the past shall be presumed to have been transferred for no compensation.” N.J.A.C. 10:71- 4.10(b)(6)ii.

Family caregivers should take note and adopt written care agreements, and keep time and task logs to guard against similar penalty impositions. Above all, seek the advice of a qualified Medicaid attorney in the state the applicant lives in to help navigate the complex process of applying for Medicaid.

For the full text of this decision, go to: https://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a3087-15.pdf?cacheID=TSSOcTe

Attorneys Suspended for Mismanagement of Elderly Clients Money

August 23, 2019 / drussellcfp

In a case that speaks of the importance of choosing a qualified trustee who has proper internal controls and procedures, and who is governed by an appropriate regulatory body, The Ohio Supreme Court suspends two attorneys for one year after they negligently managed an elderly woman’s affairs. Cleveland Metro. Bar Assn. v. Zoller and Mamone (Ohio, No. 2014-1389, Nov. 8, 2016).

The client, a widow of a former mayor of Cleveland and a former justice of the Supreme Court of Ohio, retained the law firm to administer the estate of her late husband. Having come to increasingly rely on the partners in the firm, the client later engaged the firm to manage her money, to pay her bills, and to handle other aspects of her financial and personal life. The client sought to be able to live independently in her own home, to afford around-the-clock care, and to make generous gifts to her family members and charitable causes.

In it’s findings, the court stated:

[The Respondents] assumed the responsibilities of operating and maintaining the special account when they opened the account and agreed to be authorized signatories. But they failed to ensure that the account was a separate, interest-bearing trust account for [Client’s] benefit during the six-year period in which substantial client assets passed through it. They also failed to maintain even a modicum of oversight over the account by failing to accurately record each transaction that affected the account and failing to reconcile the account against the monthly statements issued by the bank. Their abdication of these most basic duties to [client] resulted in more than 30 overdrafts of the account and $1,000 in associated bank fees. Respondents’ failures to act also facilitated the misconduct of their father, [name removed], who not only wrote and signed checks on the special account (even though he was not an authorized signatory) but who also collected excessive and undocumented legal fees from [client]—fees that averaged approximately $55,000 each year for six years, though more than $250,000 of those fees was actually collected in just the first two years of the representation.

For the full text of this decision, go to:

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-7639.pdf

Another Case of Sibling Rivalry

August 22, 2019 / drussellcfp

An Indiana Court of Appeals opinion underscores the importance of accountings in trust administration, but also raises questions about why families place siblings in adversarial positions to begin with.

According to an article posted by the Indianapolis law firm of Faebre Baker Daniels, the original case involved three siblings, Scott, Jeff and Stacey – and arose after Scott and Jeff began to question some of Stacey’s actions as trustee of their respective trusts – specifically, her handling of the trusts’ joint ownership of multiple parcels of real property. Shortly after the siblings executed a mediated settlement agreement and partitioned the properties, Scott sued Stacey, as trustee of his trust, alleging she failed to provide an accounting and had misused trust assets. Scott also alleged misappropriation of $107,000 of trust assets, which were characterized as trust expenses – which were in fact legal fees Stacey had incurred “years before the most recent trust-related litigation,” apparently with other family members.

One of the duties of a trustee (known as fiduciary duties) is to keep trust property separate and to maintain – and make available to trust beneficiaries – adequate records, which Stacey admitted she had failed to do. Unfortunately for Scott, he did not bring his complaint until after the two-year statute of limitations had expired, and the trial court found Stacey did not commit a breach of trust as to the accountings.

Scott also demanded reimbursement for his attorney’s fees for bringing the complaint against Stacey, which after being denied by the trial court was reversed by the Indiana Court of Appeals and Stacey was ordered to pay Scott’s legal fees.

While the crux of the case deals with a trustee’s responsibility to maintain adequate records and provide them to a trust’s beneficiaries, the real story in this case is the human one – that of a family of siblings now divided – at least partly – because one was put into an adversarial position with the others. I wonder if the trustee fee savings was worth it?

Source: Indiana Court of Appeals Opinion Upholds the Importance of Accountings in Trust Administration | Publications | Insights | Faegre Baker Daniels

Did you sign up for this when you agreed to be trustee?

August 21, 2019 / drussellcfp

In the Matter of DREXEL ANDREW BRADSHAW, Attorney Drexel Andrew Bradshaw was charged with five counts of misconduct related to his position as the successor trustee of a client’s trust and his involvement with a construction company that repaired the client’s home. The case demonstrates the liability exposure that fiduciaries have and the extent to which they have to defend their actions, even if those actions were appropriate and in good faith.

To summarize, Bradshaw became the court-appointed conservator and trustee of a trust for an elderly client ruled incapable of managing her financial affairs. The client lived in an older home in San Francisco that needed significant repairs for the client’s living ability and care. Bradshaw hired a construction company that he had helped the owner of the company start by providing legal services and initial funding loans. To pay for the repairs, Bradshaw petitioned the court to allow him to obtain a reverse mortgage (followed by a 2nd one two years later).

The [California] Office of Chief Trial Counsel of the State Bar (OCTC) charged Bradshaw with four counts related to his handling of the trust:

engaging in a scheme to defraud the trust,
breaching his fiduciary duties to his client and the trust beneficiaries,
misappropriation of trust funds, and
making several misrepresentations to the probate court and other government agencies.

The hearing judge found Bradshaw culpable of three of the charges (with the exception of misappropriation) and recommended that he be disbarred. Both Bradshaw and the OCTC appealed.

The appeals court found in Bradshaw’s favor and dismissed the case for “lack of clear and convincing proof.” In its ruling the appeals court stated:

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we do not find clear and convincing evidence to support culpability as to the charged misconduct. We reject OCTC’s premise that Bradshaw wanted to start a construction company and used his position as trustee to start his “corrupt” enterprise. Bradshaw served as the successor trustee for a client years after his firm drafted the client’s trust and estate plan, and only after the first two successor trustees were unable to serve. He managed the trust according to its stated purposes and terms in a reasonable and proper manner, including engaging a certified specialist in probate and trust law to assist him in his duties. Further, he adhered to his client’s clearly expressed desires to be cared for in her San Francisco home, and that the equity in the home be used to accomplish that goal. To that end, Bradshaw used the trust assets, which consisted mostly of the home’s $1.6 million equity, to provide his client with quality nursing care and for necessary repairs to ensure her safety in the home…

For the full transcript of this case, see http://www.statebarcourt.ca.gov/Portals/2/documents/opinions/Bradshaw_%2016-O-15558_%20Opinion_and_%20Order.pdf

Are you liable for your parent’s nursing home bills?

August 20, 2019 / drussellcfp

Unbeknownst to most Americans, more than half of U.S. states (29 plus Puerto Rico) have “filial responsibility” laws in effect that could potentially obligate adult children to support their impoverished parents. That includes paying the tab for basic necessities like food, housing, clothing, and medical attention, according to Little.

Source: Are you liable for your parent’s nursing home bills? | MassMutual

Turns out however that even states with such laws rarely enforce them, mainly because they weren’t needed after Medicaid became available, but also because federal laws enacted in 2016 prohibit nursing homes from requiring payment from third parties. In most states, for a child to be held accountable for a parent’s bill, all of these things would have to be true:

The parent received care in a state that has a filial responsibility law.
The parent did not qualify for Medicaid when receiving care.
The parent does not have the money to pay the bill.
The child has the money to pay the bill.
The caregiver chooses to sue the child.

Nevertheless, as the cost of long term care stresses the funding limits of Medicaid, and with Medicaid planning used as an asset preservation strategy of those with significant assets, don’t be surprised if public opinion influences legislation that shifts more of the cost burden on the family and away from the government.

The Case Files – Episode 1: “Fool me once, shame on you…”

August 19, 2019 / drussellcfp

Wealth and Honor is a website dedicated to helping families navigate the financial challenges of age transitions. The site now has a YouTube Channel to host “edutainment” videos featuring non-legal commentary on actual court cases involving will disputes, elder financial abuse, estate litigation, fiduciary liability, and other issues of aging, death, and wealth.

Court transcripts are condensed into a factual summary with popular sitcom characters providing faces to the actual characters of the case, followed by a non-legal commentary of lessons to learn and missteps to avoid.

https://youtu.be/6gBLpiWQX9c

The Case Files Trailer

The first episode covers the case of Lintz vs Lintz, a 2014 case decided in the California Appeals Court, that includes claims of breach of fiduciary duty, elder financial abuse, undue influence, among other claims. Viewers are encouraged to first watch a presentation of commonly used terms before watching the case episodes.

For a full text of the court transcript, click here.